Governing Through Harm to Promote Liberal Values: The Canadian Approach to Obscenity and Indecency Following R. v. Labaye

Kirsten Kramar, Richard Jochelson

Abstract

This paper traces the history of the Supreme Court of Canada’s construction of harm(s)
tests in the context of its obscenity and indecency jurisprudence from Hicklin (1868)
through Labaye (2005). At the core of these tests is a functionality linked to presumptive
societal norms. The contemporary harm assemblages are risk-based, and concern the
maintenance of cohesion, organized in relation to the impact of obscenity or indecency on
abstract political values rather than concretized sexual subjects. What is more, the Labaye
Court has constituted an expanded harms-based test which reifies risk of harm as
tantamount to proven harm while propagating the nimble lie that Courts are required to
rely on expert opinion evidence of harm, when the Courts, in fact, rely on their own
judgment. Ultimately, the Court is still concerned in the main with the proper functioning
of society, targeting those whose conduct is deemed harmful to a particular view of
society.